Coleman v. United States, 22129.

Citation142 US App. DC 402,442 F.2d 150
Decision Date08 March 1971
Docket NumberNo. 22129.,22129.
PartiesCharles D. COLEMAN, Appellant, v. UNITED STATES of America.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Warren E. Magee, Washington, D. C. (appointed by this court) for appellant.

Mr. Robert C. Crimmins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Messrs. David G. Bress, U. S. Atty., at the time the record was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the record was filed, also entered appearances for appellee.

Before BAZELON, Chief Judge, and McGOWAN and ROBINSON, Circuit Judges.

PER CURIAM:

Appellant, convicted by a jury of robbery, was given a sentence of one to three years, to run consecutively to a sentence he was then serving in Maryland. Two sources of error are claimed here. The first lies in the District Court's denial of appellant's motion for acquittal based on the insufficiency of the Government's proof. The second concerns the denial of appellant's motion to dismiss the indictment for want of a speedy trial. As to the first of these points, we think that after examining the evidence of record, the issue of guilt was properly submitted to the jury. In any event, the second claim we believe to be well taken; and, accordingly, we explore it hereinafter in some detail.

The offense occurred on July 1, 1966, and appellant was arrested within a few minutes thereafter. The victim, a retired employee of the National Bureau of Standards named Babb, testified that he went to the bank around noon and withdrew $3800. Of this amount, $1300 was placed in one wallet and $2500 in another. With both wallets in a deep shirt pocket, Mr. Babb boarded a bus at 6th and E Streets, N.E. Two blocks later, as the bus pulled up to a stop at an intersection, a passenger brushed against Babb and pulled the wallets from his pocket. Babb grabbed the blue suit jacket of the thief but could not hold on.1 Both emerged on the sidewalk, the thief running and Babb in pursuit but losing ground rapidly. One Valentine, a District guard and cab driver, observed this chase as it went by his car which was stopped for a red light at the same intersection. Noting that Babb, who was shouting and gesticulating wildly, was falling behind, Valentine quickly applied his emergency brake and took up the chase on foot. Valentine testified that as the thief ran past his car he observed him carefully, noting his clothing, his Afro haircut, his eyes, and other facial features. Both pursuers lost contact when the thief ran into a residential alley, but two young boys playing in the vicinity pointed out the direction he had gone.2 Since Valentine knew where the alley came out on the other side, he returned to his car and drove quickly around to that point.

After several minutes, appellant emerged. He stood at the entrance to the alley for a time and then turned and walked casually past Valentine's parked car and down an adjoining street. While appellant was standing in front of the local Safeway store, Valentine interrupted his surveillance to search for a police officer to assist in the arrest. Upon finding an officer and returning to the street, they found appellant leaning against a fence at a nearby bus stop. Valentine was strongly positive in his testimony that appellant was the same man he had chased into the alley. The only difference in appearance between appellant and the thief who entered the alley, so he testified, was that, instead of blue trousers, appellant was wearing Bermuda shorts. Valentine testified that he thought to himself at the time, "That don't change me; I still know him."

One prosecution witness who lived on the alley in question testified that she heard someone run upstairs past her apartment and then down again shortly thereafter. Another witness who lived upstairs from the first testified that she found Babb's wallets on the second floor ledge. One wallet had $1300 in it but the other was empty. A defense witness, a female acquaintance of appellant, testified that she had seen him earlier on the morning in question wearing shorts. Appellant did not testify in his own defense, allegedly because he would have to implicate a friend as the robber.3

The serious question before this court concerns the alleged deprivation of appellant's Sixth Amendment right to a speedy trial. The Government's position throughout has been that appellant is so clearly guilty of this robbery that irrespective of the length or causes of the delay, he could have suffered no prejudicial deprivation of his constitutional right. We will in due course examine the Government's contention more closely, but it will be helpful first to place appellant's claim in context. The following timetable of events from arrest to trial emerges from the record.

Arrested on July 1, 1966, appellant was released on bond the following day after a preliminary hearing in the Court of General Sessions. An indictment was returned on August 15. In the interim, on July 28, 1966, appellant was arrested for shoplifting in Maryland. On December 21 he was convicted of that charge and sentenced to three years in the Maryland House of Corrections, to which he was committed on December 22. His criminal jacket contains a letter, dated October 25, 1966, from the Sheriff of Prince George's County, Maryland, to the D.C. authorities, reporting appellant's detention in the county jail pursuant to his arrest. On January 18, 1967, appellant's bond was forfeited and a bench warrant was issued by the District of Columbia District Court. On January 26, the warrant was sent to the Maryland House of Corrections, and four days later a detainer was formally lodged.

Some ten months later, by a letter to the United States Attorney, dated December 2, 1967, appellant requested that he be brought to trial for the D.C. robbery charge pending against him. Several weeks thereafter, on January 19, 1968, the United States Attorney filed a writ of habeas corpus ad prosequendum which was granted by the Maryland correctional authorities. Appellant was then returned to the D.C. jail. He was arraigned on February 23; counsel was appointed on the 26th; and a motion to dismiss for lack of speedy trial was made on March 18. At the April 5th hearing before the District Court, the motion was denied.

The total time elapsing between arrest4 and the dismissal hearing was 626 days, or approximately 21 months. A delay of this length by itself raises a serious speedy trial question. At the least, it places on the Government the heavy burden of demonstrating that appellant's Sixth Amendment right has not been abridged. Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). In exploring this speedy trial issue, we must consider in addition to the durational factor, "the reasons for the delay, the diligence vel non of prosecutor, court, and defense counsel, and the likelihood, or at least reasonable possibility, that defendant has been prejudiced by the delay." Hedgepeth v. United States, supra. See also Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).

Unlike so many of the speedy trial cases reviewed by this court in recent years, this is not a case in which we are called on, after hearing appellant's and the prosecutor's competing claims, to attempt to parcel out the blame for each of the discrete dilatory occurrences which, taken together, have raised the specter of constitutional violation.5 Here we are not asked to ascertain what portion of the 21-month delay is properly attributable to the Government and what percentage to the accused.6 Nor is this a case in which we can allocate any substantial portion of the delay7 to "the deliberate pace of the system of safeguards designed to protect the accused." Blunt v. United States, 131 U.S.App.D.C. at 310, 404 F.2d at 1287; United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Indeed, the Government, upon whom the burden of explanation lies, has failed to offer, either at the dismissal hearing or in its brief on appeal, any justification for the unusually lengthy interval between arrest and trial.

Appellant alleges, and our examination confirms, that the major cause of the delay here arose from appellant's incarceration in Maryland which began only 26 days after his preliminary hearing. Although the Government knew of his presence there at least as early as October, 1966 (when the Prince George's County Sheriff informed the District authorities of appellant's whereabouts), no effort was made to secure his return for trial until January, 1968. Apparently, appellant's letter to the United States Attorney requesting trial was the impetus for the Government's eventual seeking of the appropriate writ of habeas corpus ad prosequendum. But for appellant's request, there is no indication that the Government intended to move toward prosecution until the culmination of appellant's three-year Maryland sentence.

The Supreme Court, faced with speedy trial claims in which the accused was incarcerated outside the prosecuting jurisdiction for another crime, has recently taken a dim view of governmental unwillingness to press for expeditious prosecution of such defendants. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed. 2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). The Court has emphasized that the basic protections afforded by a speedy trial — prevention of undue and oppressive incarceration prior to trial, minimization of anxiety and concern associated with public accusation, and limitation of the possibility that delay will impair the accused's ability to defend himself8 — are equally, if not more, significant where the accused is imprisoned in another jurisdiction prior to trial. Smith v. Hooey, s...

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